I think that the motion of the defendants for a directed verdict in their favor should have been granted upon the ground set forth in the opinion of the Chief Justice which needs not to be repeated. It is in substance that the alleged slanderous language set forth in the complaint, that the plaintiff "was $32.20 short in his cash" and "if you don't pay *Page 70 it I will turn it in to the bonding company and they will pay it," did not impute to the plaintiff the commission of a crime, and was not therefore actionable without proof of special damages.
The testimony of the plaintiff and that of his witnesses Sloan and Lindsay shows that the plaintiff and the superintendent, Hair, were at cross-purposes in the conferences between them for the purpose of settling the accounts of the plaintiff who was retiring from the employment of the defendant company to take up work with another company
It appears that in a prior settlement with one Hurt, a predecessor of the plaintiff, an item appeared, not as a charge against Hurt, but as simply a memorandum of a balance of some $30 which had been paid to the company upon what was called the surplus account, or advanced payment account, made up of payments made by policyholders whose policies had lapsed, and were being held by the company until the payments accumulated to an amount sufficient to justify reinstatements of the policies. This, of course, could not be considered at a debit item against the predecessor Hurt or against the plaintiff, for it was in the hands of the company.
When the superintendent, Hair, balanced the account of the plaintiff preparatory to his leaving the company, he announced that the plaintiff was short in his cash $32.20. The plaintiff insisted that he was not short anything and that the apparent shortage was due to the fact that the debit item in Hurt's account of $30 had been erroneously carried into the statement of his account, and refused to account for the alleged balance of $32.20, though expressing willingness to account for $2.20, the balance after striking out the erroneous item of $30.
Hair made every effort to explain to the plaintiff that the balance of $32.20 was made up entirely of different items; that the Hurt item of $30 had not entered into the statement made up by him. The plaintiff would not be satisfied with *Page 71 the explanation, and an angry dispute between them arose. It terminated with Hair's declaration, insisting upon payment, that if the plaintiff did not pay it he would make claim for it upon the company which had gone upon the plaintiff's bond when he was employed.
The plaintiff in his testimony to some extent amended the allegation of his complaint as to the statement made by Hair. He testified that Hair threatened to report the shortage to the bond company, "and the bonding company would collect it — they would turn it over to the authorities — he said he didn't give a damn whether I paid it or not, he would turn it into the bonding company and they would pay it."
Conceding, what I do not at all admit, that the plaintiff is entitled to recover upon a slanderous statement not alleged in the complaint, this amended statement constitutes the gravamen of the plaintiff's grievance.
The inference is entirely argumentative that when the shortage was reported to the bonding company and that company paid it, they would turn the matter over to the authorities for procedure under the criminal laws of South Carolina; that therefore the declaration contained an implication that the plaintiff had committed a breach of trust with fraudulent intent.
If the plaintiff was actually short in his accounts and the bonding company had to make it good, they would most probably attempt, at least, to obtain reimbursement from the plaintiff by such means as were available; that is, all that the statement if made could possibly mean. If as a matter of fact the plaintiff was not short in his account, the report of the matter to the bond company would doubtless have resulted in their ascertaining that fact and of course doing nothing.
To justify the inference that a report to the bond company would have resulted in a criminal prosecution, it necessarily must have appeared that the bond covered only criminalconduct on the part of the plaintiff. It is only upon that *Page 72 assumption that it could possibly be argued that the Superintendent meant to charge the plaintiff with a breach of trust with fraudulent intent.
It appears to me that the case of Bell v. Clinton Oil Mill,129 S.C. 242; 124 S.E., 7, 9, is absolutely conclusive of the present issue. In that case the alleged slanderous statement of an officer of the company was this: "You might get word to Theo (referring to the plaintiff), that the company is going to place his account with the bonding company" — as the Court said: "manifestly meaning that the company intended to make a claim against the bonding company for the balance due by the plaintiff, as a liability under the bond." The Court further said:
"This is the slander of which the plaintiff complains, interpreted by him as a charge that the plaintiff had committed a breach of trust by appropriating to his own use money belonging to the company, and had thereby committed a crime against the laws of South Carolina; in other words, that he had committed a breach of trust with fraudulent intent. The language quoted does not upon its face impute to the plaintiff commission of a crime; it is therefore not actionable per se. If it can be construed as actionable, it must be by reason of extrinsic facts which taken in connection with the language used, disclose an intention on the part of the utterer to charge the plaintiff with having committed a crime.
"The bond indemnified the company from loss on account of certain specified acts of the employee: Personal dishonesty, forgery, theft, larceny, embezzlement, wrongful conversion, abstraction, and misapplication of funds. Some of these are essentially violations of the criminal law; others, not. It seems to be assumed by the plaintiff that the fact that the balance of the account due by him was to be demanded of the bonding company as a liability under the bond necessarily implied that the plaintiff had committed a crime, and that, if he did not settle, the bonding company *Page 73 would institute criminal proceedings against him. There may have been some force in this assumption, if the bond had purported to indemnify the company only against loss sustained by the criminal conduct of the employee."
And further: "But if the bond covers deficits free from criminal intent, as well as those with such intent, a mere reference to the demand upon a bonding company for money due by the plaintiff furnishes no inference of an intention to charge the plaintiff with a crime."
The Court approved the following charge of the circuit Judge as clearly and accurately expressing the law: "I charge you, as a matter of law, that the assertion here that the plaintiff committed a breach of trust, having appropriated money to his own use, does not state a crime against the laws of South Carolina. A man may appropriate money to his own use without being guilty of a crime, or may commit a breach of trust without committing a crime. Breaches of trust are committed every day in the week, I reckon, and every week in the year, all over this country; but they do not necessarily constitute crimes, and the only way that that act could become a crime would be to do it with fraudulent intention. If a man commits a breach of trust with fraudulent intention, that is a crime; and if you charge a person with committing a breach of trust with fraudulent intention, then you charge him with a crime. But just to say that a man has committed a breach of trust, or that he has appropriated money to his own use, does not state a crime against the laws of this State. * * * There has been so much said about this bond that I charge you, as matter of law, that this bond covers other defaults and shortcomings, so to speak, of a person who is required to give it, besides those things which amount to a crime. The bond says it is given to reimburse the party to whom it is given against any act of personal dishonesty, forgery, theft, larceny, embezzlement, and wrongful conversion. Now, a man may be guilty of a wrongful conversion, and not be guilty of a crime. *Page 74 So, if a man wrongfully converts money to his own use, and does it in such a way as not to subject himself to the charge of violating the criminal law, this bond would cover that abstraction or misapplication. If a man misapplies money where he should not, it would not necessarily follow that it is a crime; and this bond would cover that. So I charge you that this bond covers other shortcomings other than those things that are charged in here as crimes."
"Slanderous words to be actionable must impute the commission of a crime. 17 R.C.L., 263. Unless the article is libelous per se, no cause of action is stated since no special damages are alleged. Kee v. Armstrong, Byrd Co.,75 Okla. 84; 182 P. 494; 5 A.L.R., 1349.
The slanderous language proven here was not slanderousper se.
A charge that "his stock is short and his cash," made against a store manager, to his friend, by the superintendent who was then checking his accounts, does not necessarily impute the commission of a criminal offense. GrandUnion Tea Co. v. Lord (C.C.A.), 231; F. 390, 395, Ann. Cas., 1918-C, 1118, where at page 1121 of Ann. Cas., 1918-C, the Court says: "It seems to us by no means certain that the language of Van Allen implied the commission of a crime, or was so understood by Moncure. The circumstances attending the utterance were such that Moncure might have inferred that no more was meant than a discovered variance between the amount of stock on hand and the amount that ought to be on hand according to the books. In other words, the shortage mentioned might have been understood to be merely a discrepancy, resulting from carelessness or unintentional error, which called upon Lord for explanation."
In Bell v. Clinton Mill, 129 S.C. 242; 124 S.E., 7, 11, the Court said: "It is apparent from the terms of the Statute that there may be a breach of trust, without a fraudulent *Page 75 intention, which is not a crime under the Statute; and so it has been construed by this Court in numerous instances" — citing cases.
In determining whether words are actually slanderous, they must be given their usual and ordinary meaning, and must be construed in the light of the knowledge and information that the hearers had as to such meaning. 17 R.C.L., 313.
The hearers cannot attribute some unusual and sinister meaning which they knew or should have known was not intended. Campbell, Sloan, and Lindsay were all familiar with insurance accounting and knew what a surplus in a debit meant, and how it was made up. If, in fact, Hair said this shortage was made up of $30 cash surplus brought over from Hurt, and $2.20 excess arrearages and application fees, all of these parties knew that there could be no accusation of a criminal act in connection therewith. The law says they have no right to construe language to charge the commission of a crime which related to facts which could not constitute a crime, and which were capable of an innocent construction.
"It is rather the effect which the language complained of was fairly calculated to produce, and would naturally produce, upon the minds of readers of reasonable understanding, discretion, and candor, after it has been examined and considered in connection with all other parts of the writing, and in the light of all the facts and circumstances known to them." Thompson v. Lewiston Daily Sun Pub. Co.,91 Me., 203; 39 A. 556, 557.
"In construing words charged to be slanderous everything said at the time and place should be considered together and given its natural and obvious meaning." Nichols v.Daily Reporter Co., 30 Utah, 74; 83 P. 573; 3 L.R.A. (N.S.), 339; 116 Am. St. Rep., 807; 8 Ann Cas., 841.
"Words are to be construed by a court and jury in the same manner as they were or ought to be construed or *Page 76 understood, by the person to whom they were spoken."Eifert v. Sawyer, 2 N. McC., 511; 10 Am. Dec., 633;Pegram v. Styron, 1 Bailey, 595.
"In interpreting language complained of as slanderous, accompanying explanations and surrounding circumstances which were known at the time to the persons who heard the words uttered and which tend to modify their meaning may be taken into consideration, but attending circumstances which were unknown to the hearers cannot be considered."Greer v. White, 90 Ark. 117, 118 S.W. 258; 17 Ann. Cas., 270; 25 Cyc., 357; Paxton v. Woodward, 31 Mont., 195;78 P. 215; 107 Am. St. Rep., 416.
The bond of the bond company is not set out in the transcript; it cannot be assumed that it covered only criminal acts of the plaintiff, upon which ground alone could it be argued that the alleged slanderous statement contained the implication of criminal conduct on the part of the plaintiff.
As to the second exception of the appellants, charging error in the admission of certain testimony of the witness Sloan in reference to the condition of the bond, I do not think that the testimony was prejudicial to the defendants; it was rather helpful. He testified:
"Well, I understood him to mean, when he said he was going to report it to the bonding company, and didn't care whether he would pay it or not, I would understand it was a cash shortage, knowing the bond would be liable only fora cash shortage." That the bond was "to cover cash shortage."
"Q. What is the purpose of making a report to the bonding company? A. It is to collect money — money from the bonding company — it is for the bonding company to pay this money that the agent has collected on the debit and has not remitted to the company."
I do not find in Sloan's testimony any evidence tending to show that the bond covered only criminal acts of the plaintiff, *Page 77 which alone could by any possibility form the basis of an implication of a criminal charge.
For these reasons I think that the judgment should be reversed, and the case remanded for judgment in favor of the defendants under Rule 27.